Opinion
No. CV09-4030012
May 25, 2010
MEMORANDUM OF DECISION MOTION TO DISMISS
The respondent-conservator, James Lillis, has filed a Motion to Dismiss the above-captioned matter. The basis for the motion is that the subject of the habeas corpus petition Jessie Lee Sullivan, is deceased. The respondent-conservator argues that the matter is now moot, and the court no longer has subject matter jurisdiction. The habeas corpus petition claims that the Bridgeport Probate Court's conversion of the petitioner's temporary conservatorship to an ongoing conservatorship was illegal, and as a result, the petitioner is being illegally deprived of her liberty and her right of free association. The petition requests that Ms. Sullivan should be relieved of the conservatorship and allowed to return to her home.
Sullivan, who was 86 years old died on February 26, 2010.
In opposition, the next friend, who brought the action in behalf of Ms. Sullivan, argues that pursuant to General Statutes § 52-599, Connecticut's right of survival statute, a cause of action can survive if a representative of the decedent's estate is substituted for the decedent. Further, that during the interval between the death and the revival of the action by the appearance of a substitute party the cause has no vitality, and the surviving party and the court alike are powerless to proceed with it. See Burton v. Browd, 258 Conn. 566, 570-71 (2001) (emphasis added) (internal citations and quotations omitted). Therefore, it is questionable if the motion to dismiss is proper and if the court can act on it.
Sec. 52-599. Survival of cause of action reads as follows:
(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.
(b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff's death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived. If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant's death, may apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed.
(c) The provisions of this section shall not apply: (1) To any cause or right of action or to any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto, (2) to any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants, or (3) to any civil action upon a penal statute.
I Background
According to the petition, the conserved person, Sullivan, was an elderly woman who owned real property at 360 Anton Drive in Bridgeport, Connecticut, where she lived for most of her life. In October 2007, Charlene Reid, one of Sullivan's nieces, petitioned the Probate Court to appoint a conservator for Sullivan, who was then residing at Bridgeport Hospital. That application raised concerns that Sullivan had bills that had not been paid by her power of attorney, including a large arrearage owed to the gas company, and that her home health care for conditions including diabetes requiring regular blood testing and a restricted diet was inadequate. On October 16, 2007, the Probate Court appointed Attorney Carmine Perri to represent Sullivan's legal interests in that conservatorship proceeding. Thereafter, on October 30, 2007, the Probate Court appointed Attorney Brian Winter to serve as guardian ad litem for Sullivan.
The Probate Court scheduled a hearing on the application for appointment of a conservator on December 10, 2007. In advance of that hearing, the Probate Court received a letter from James Lillis, Sullivan's Power of Attorney and Healthcare Manager, seeking to release funds to pay her outstanding bills. Lillis additionally raised concerns that Sullivan's nieces, Reid and Darlene Parks and her sister, Bertha Parks were "the reason she is in the hospital" and that they had taken Sullivan's personal property, identification, and Social Security from Sullivan's home. The Probate Court also received a letter from Attorney Perri, Sullivan's court-appointed counsel. Perri notified the Probate Court that Sullivan objected to the appointment of a conservator and appeared to be able to comprehend conversations.
Two weeks after the Probate Court received the letter from Perri indicating that Sullivan objected to the appointment of a conservator and approximately two weeks before the December 10, 2007 hearing, Sullivan's guardian ad litem filed an Application for Appointment of a Conservator indicating that Sullivan had designated Lillis as conservator. The guardian ad litem's application also represented that Sullivan needed a conservator of the estate to protect her property rights and a conservator of the person because her condition made her "unable to receive and evaluate information or make or communicate decisions to such an extent that [she was] unable, even with appropriate assistance, to meet essential requirements for personal needs." On December 10, 2007, Perri, Sullivan's court-appointed counsel, indicated that Sullivan had decided not to object to Lillis' application for appointment as conservator, but wished to make it clear that she wanted to remain residing in her home.
The December 10, 2007 hearing at the Probate Court hearing was recorded. Upon the conclusion of the December 10, 2007 hearing, Bridgeport Probate Judge Ganim granted the application based on his what he stated were findings of "[c]lear and convincing" evidence. He appointed Lillis as conservator, with the express caveats that the conservator: (1) "shall use the least restrictive means of intervention in the exercise" of his authority; (2) was "bounded by all health care decisions properly made by the conserved person's health care representative"; and (3) that Sullivan "shall retain all rights and authority not expressly assigned to the conservator." Thereafter, Sullivan, who was represented by her court-appointed counsel, Attorney Perri, did not appeal that decision.
On or about October 21, 2008, the conservator, Lillis, filed a request to place Sullivan in long-term care at the Park City Residential Care Home in Bridgeport ("Park City") because her health required supervised care which could not be provided by the current primary care provider, Gregory Brown, Sullivan's grandson. The conservator's request additionally stated that Brown's presence was "causing emotional stress" for Sullivan. The placement request was supported by a letter from Sullivan's treating physician indicating that Sullivan may be able to receive the best care at an extended care facility.
On December 2, 2008, before the Court had acted on the request to place Sullivan at Park City, she was taken from her home and admitted to Northbridge Health Care Center in Bridgeport ("Northbridge") for respite care. On February 2, 2009, Attorney Mark Moore of Connecticut Legal Services, who represents Darlene Parks, the next friend petitioner in this action, filed an appearance in the probate matter on behalf of Sullivan. On February 4, 2009, Moore filed a Motion for Continuance, indicating that Sullivan's "new attorneys need additional time to prepare" for a scheduled February 9, 2009 hearing on several issues, including the maintenance of Sullivan in long-term care. Sullivan's court-appointed counsel responded to Moore's appearance on behalf of Sullivan by moving to strike Moore's appearance claiming said appearance violated the rules of professional conduct. Judge Ganim struck Moore's appearance on behalf of Sullivan following a hearing. Neither Sullivan nor Moore appealed, or otherwise sought review of, that decision.
On April 6, 2009, the Court ordered the parties to appear to discuss the outstanding issues, including Sullivan's objection to her conservator's request that she be kept in a nursing home. Although, at that time, the parties believed it might be appropriate to return Sullivan home, in the intervening months both Sullivan's conservator and her guardian ad litem concluded that it was in her best interests to remain in Northbridge. The Probate Court held a hearing on this issue on July 13, 2009, and allegedly found clear and convincing evidence that it was in the best interest of Sullivan to remain in her current residence at Northbridge Healthcare Center in Bridgeport, Connecticut. Again, despite having the services of court-appointed counsel, Sullivan did not appeal the probate court's decision.
On August 24, 2009, Moore and Connecticut Legal Services filed the instant Petition for a Writ of Habeas Corpus on behalf of Sullivan, acting by her niece and next friend Darlene Parks, pursuant to General Statutes § 45a-705a. The petitioner named Judge Ganim and the conservator, Lillis as respondents. In a decisions rendered by the court on an earlier date, the court dismissed the petition as it related to Judge Ganim. Subsequently, the court granted a motion to strike Attorney Perri's appearance in behalf of Sullivan in this action, finding that Perri's appointment as counsel for Perri by the Probate Court judge was limited to the Probate Court conservatorship proceedings, and that Sullivan had the right to counsel of her choice in the pending habeas corpus proceedings.
Sec. 45a-705a. Application for writ of habeas corpus by individual subject to guardianship or involuntary representation reads in relevant parts, as follows:
(a) An individual subject to a guardianship or involuntary representation under this chapter may apply for and is entitled to the benefit of the writ of habeas corpus without having previously exhausted other available remedies including, but not limited to, the right to appeal the order of guardianship or involuntary representation. The question of the legality of such guardianship or involuntary representation shall be determined by the court or judge issuing such writ.
(b) A writ of habeas corpus shall be directed to the guardian of the person or the estate of the ward or to the conservator of the conserved person and if illegality or invalidity of the guardianship or involuntary representation is alleged in such writ, a copy shall also be directed to the judge of the court that issued the order as to such claim.
(c) An application for a writ of habeas corpus under this section shall be brought to either the Superior Court or the Court of Probate . . .
(f) If the court or judge before whom such a writ is brought decides that the guardianship or involuntary representation is not illegal, such decision shall be considered a final judgment and subject to appeal.
(g) If the court or judge before whom such case is brought decides that the guardianship or involuntary representation is not illegal, such decision shall not bar issuance of such a writ again, provided it is claimed that such person is no longer subject to the condition for which the person was conserved or such application is based on a ground different from that relied on in an earlier application. Such writ may be applied for by an individual subject to guardianship or involuntary representation or on the behalf of such individual by any relative, friend or person interested in such individual's welfare.
(h) An appeal to the Superior Court of a decision rendered by a three-judge court under this section shall be filed in the judicial district in which the court of probate that issued the order appointing a guardian or conservator is located. Such appeal shall be heard not later than thirty days of the return of service of the appeal.
This court ruled that Ganim is not a proper respondent to the petition brought pursuant to § 45a-705a. See Sullivan v. Ganim et al., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV09 4030012 (November 30, 2009, Arnold, J.).
The decision granting the motion to strike Perri's appearance is dated December 2, 2009. See Sullivan v. Ganim, Superior Court, judicial district of Fairfield at Bridgeport, No. CV09-4030012 (Dec. 2, 2009, Arnold, J.) 48 Conn. L. Rptr. 872.
II Standard of Law
Before proceeding further the court reviews the relevant standard of law when entertaining a motion to dismiss. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person and (3) improper venue. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Richardello v. Butka, 45 Conn.Sup. 336, 717 A.2d 298 (1997) [ 18 Conn. L. Rptr. 409]; Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999); Bradley's Appeal from Probate, 19 Conn.App. 456, 461-62, 563 A.2d 1358 (1989). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint . . . construing them in a manner most favorable to the pleader . . ." Young v. Commissioner of Correction, 104 Conn.App. 188, 193 (2007). The petitioner, however, "bears the burden of proving that the court has subject matter jurisdiction." Id. "It is the law in our courts, as it is in the federal courts, that [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Pamela B. v. Ment, 244 Conn. 296, 309 (1998).
III
CT Page 10801
Discussion
The conservator in filing this motion to dismiss argues that the matter is moot and is no longer justiciable due to the death of the ward, Jessie Lee Sullivan, in whose behalf the petition for a writ of habeas corpus was brought by her next friend. The conservator maintains there can be no more controversy over the petitioner Sullivan's liberty interest, and the determination of the merits of the petition cannot result in any practical relief to the complainant. Therefore, the conservator concludes the present petition is not justiciable, removing this court's subject matter jurisdiction and necessitating that the petition be dismissed."Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court's subject matter jurisdiction . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable." (Citations omitted; internal quotation marks omitted.) Valvo v. Freedom of Information Com'n, 294 Conn. 534, 540, 985 A.2d 1052 (2010); State v. Preston, 286 Conn. 367, 373-74, 944 A.2d 276 (2008). "[T]he four part test for justiciability [was] established in State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982) . . . Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Citation omitted; internal quotation marks omitted.) Id., 540-41, quoting, State v. Preston, supra, 373-74. "A case is considered moot if [the trial] court cannot grant the appellant `any practical relief through its disposition of the merits . . .'" Moraski v. Connecticut Board of Examiners of Embalmers Funeral Directors, 291 Conn. 242, 255, 967 A.2d 1199 (2009). "As we have recognized, justiciability comprises several related doctrines, namely, standing, ripeness, mootness . . . that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter . . ." Connection Coalition for Justice in Educ. Funding, Inc. v. Rell, 295 Conn. 240, (2010) Because mootness implicates a court's subject matter jurisdiction, it raises a question of law. Valvo v. Freedom of Information Com'n, supra, 294 Conn. 541; see also, Windels v. Environmental Protection Commission, 284 Conn. 268, 279, 933 A.2d 256 (2007).
In arguing that a motion to dismiss is improper, the petitioner relies primarily on General Statutes § 52-599(a) and Stanley's Appeal from Probate, 80 Conn.App. 264, 834 A.2d 773 (2003). General Statutes § CT Page 10802 52-599(a) states that "A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person." If a party plaintiff dies a substitute plaintiff may enter within six months of the plaintiff's death. See. General Statutes § 52-599(b).
In Stanley's Appeal from Probate, supra, 80 Conn.App. 264, the trial court made factual findings that on May 13, 1999, the Probate Court had appointed two individuals as co-conservators of the estate and person of Ann Stanley. Ann Stanley then filed with the Probate Court an application for appeal, alleging that she was aggrieved by the order and decree of the Probate Court. On June 10, 1999, the Probate Court issued a decree allowing her to appeal from that appointment. On September 14, 1999, the Probate Court found that Ann Stanley no longer was in need of a conservator and ordered that the conservatorship be terminated. On June 5, 2000, Ann Stanley died. On October 22, 1999, following the termination of the conservatorship, the Probate Court awarded fees totaling $7,080.50, including $3,805.50 to one of the co-conservators, who was an attorney.
In its memorandum of decision in Stanley's Appeal form Probate, supra, the trial court concluded that the termination of the conservatorship rendered moot the appeal from the appointment of conservators and found that there was no collateral injury or consequence from which a court could grant relief. In reversing the trial court, the Appellate Court stated "[i]f an actual controversy as to Ann Stanley's claims ceased to exist when the Probate Court terminated the conservatorship, the present appeal would be rendered moot. Furthermore, a court will not decide questions when there exists no actual controversy or when no actual practical relief can follow from the court's determination." (Citations omitted.) Id., 267. The Appellate Court found, however, that "Ann Stanley was not seeking merely to terminate a conservatorship, but also to have the appointment itself set aside. The order of September 14, 1999, which terminated the conservatorship, did not cause the controversy to cease to exist." Id., 268. Furthermore, the Appellate Court determined that "a pending appeal at the Superior Court contesting the reasonableness and the amount of the award of fees as a cause for declaring this matter as not being moot." Id. "Neither the termination of the conservatorship nor the pending appeal contesting fees allows for the substitute plaintiffs to contest whether there was a valid appointment of a conservator. The substitute plaintiffs may argue that if no legal basis is found for the appointment, then there also exists no legal basis for an award of fees. To declare this appeal moot would be to disallow the substitute plaintiffs to litigate their claims fully. Because the substitute plaintiffs may be offered practical relief as a result of this appeal, their claims are not moot." Id.
The court finds that Stanley's Appeal from Probate, supra, 80 Conn.App. 264, is not analogous to the present matter, which is not an appeal from an order of the probate court, or dispute over a conservator's fees and expenses. Rather, it is a petition for a writ of habeas corpus seeking a release from the custody imposed upon the decedent by her conservator. The threshold requirement for bringing the writ of habeas corpus is that there must be an individual that applies for and is entitled to the writ. "[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody." Baker v. Commissioner of Corrections, 281 Conn. 241, 249, 914 A.2d 1034 (2007) quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), overruled in part on other grounds by Heck v. Humphrey, 512 U.S. 477, 481-82 (1994)). "[T]he writ of habeas corpus does not act upon the [person] who seeks relief, but upon the person who holds him in what is alleged to be an unlawful custody . . . The whole force of the writ is spent upon the [custodian]." (Citations omitted.) Hickey v. Commissioner of Corrections, 82 Conn.App. 25, 33, 842 A.2d 606 (2004).
It is true that in her habeas corpus petition, Sullivan was alleging that the appointment of Lillis, as her conservator was illegal. The relief sought by Sullivan was termination of the conservatorship and her release from the Northbridge Health Care Center. Sullivan wished to return to her residence at 360 Anton Drive in Bridgeport, Connecticut. This petition for habeas corpus seeks to release her from the alleged unlawful custody of the conservator. However, as a result of Sullivan's death, there can be no further controversy over her liberty interest. The determination of the merits of her habeas corpus petition seeking a release from custody cannot result in any practical relief to the deceased petitioner. Valvo v. Freedom of Information Com'n, supra, 294 Conn. 540-41; Moraski v. Connecticut Board of Examiners of Embalmers Funeral Directors, supra, 291 Conn. 255. Therefore, the present petition is not justiciable and the matter is moot. As a result, this court lacks subject matter jurisdiction. Accordingly, the motion to dismiss is granted and the habeas corpus petition is hereby dismissed.